The FBI's comments regarding Thurman's testimony in this case
are set forth in our discussion of Thurman in Part Five, below.

U.S. Attorney's Response

The U.S. Attorney objects to our criticism of Thurman for his
testimony that a finding of three prills of ammonium nitrate in a
paper bag indicated that the person "likely had a much
larger quantity of amonium nitrate." The U.S. Attorney
argues that Thurman's testimony was an accurate statement because
"one would not purchase three prills of ammonium nitrate,
because that quantity has no useful value."

OIG Reply

The U.S. Attorney misunderstands our conclusion, stating that
we concluded that Thurman should have said that it was
"logical" as opposed to "likely" that a
person would have had a larger quantity. Our point was that
Thurman erred when he stated that it was "likely" that
a person in possession of three prills of ammonium nitrate once
had a larger quantity. The most Thurman could have said was that
possession of a larger quantity was a possibility. Accordingly,
we have revised the wording of this paragraph to clarify our
point but have otherwise not changed the conclusion.

SECTION H2: NORFOLK TANK FARMS

The FBI did not make any comments on this section.

SECTION H3: MELISSA BRANNEN

The FBI did not make any comments on this section.

SECTION H4: PAOLO BORSELLINO

FBI Response

The FBI argues that Robert Heckman does not deserve criticism
for testifying (1) that C-4 is increasingly used in mining and
quarry operations, (2) that RDX usually appears as a solid block,
(3) that most detonators use RDX, and (4) that the FBI had
"electronically examined" fragmented circuit boards.
The FBI seems to concede that Heckmans testimony was
imprecise, but argues that we should recognize what Heckman meant
to say. FBI Response at 31-32.

OIG Reply

The FBIs objections are not persuasive.

(1)Heckman testified that it is increasingly common for C-4 to
be used in quarry and mining operations. The FBI argues that
Heckman only meant to say that C-4 is no longer exclusively a
military explosive. That may be true, but he did not say that.
Moreover, it is still relatively rare for C-4 to be used in
mining.

(2)Heckman testified that RDX usually appears as a solid block
but can be pulverized into powder. The FBI argues that Heckman
nevertheless recognizes that RDX is manufactured as a powder.
Again, that may be true but Heckman did not say that. In any
event, RDX is normally not found as a solid block unless it is in
a block of C-4 or some other explosive.

(3)Heckman testified that most detonators use RDX. The FBI
argues that Heckman did not testify inaccurately since most
detonators use either RDX or PETN. Still, RDX is not the most
common ingredient of detonators.

(4)Heckman testified that the FBI had "electronically
examined" the circuit board fragments. The FBI argues that
Heckman only meant to say that the FBI "did an electronic
analysis of the circuit to determine what electrical component
were in the circuit board fragments." Again, however,
Heckman did not say that. His testimony implies that a more
extensive electronic examination had been performed by the
FBI.

SECTION H5: GINO NEGRETTI

FBI Response

The FBI objects to the way we characterized Alan Jordan's
conduct in the draft Report. (1) The FBI contends that we should
not have stated that Jordan "inaccurately"
reportedWhitehurst's findings. Rather, we should have stated that
the testimony "could have been more accurate." (2)
Also, according to the FBI, we should not have stated that Jordan
"doubted" that the explosion was caused by low
explosive, since Jordan was sure that it was not caused by a low
explosive. (3) The FBI contends that we should not have stated
that there was no basis to conclude that Jordan colluded with
counsel to prevent Whitehurst from testifying, because there was
no allegation that Jordan colluded with counsel. FBI Response at
32-33.

OIG Reply

(1)Contrary to the FBI's suggestion, Jordan did not accurately
testify to Whitehurst's findings. Jordan was asked on direct
examination if Whitehurst sent Jordan a positive chemical
analysis on a piece of evidence. In response, Jordan stated that
Whitehurst sent back "findings of materials, residues
consistent with RDX and HMX." In fact, Whitehurst identified
RDX and found residues consistent with HMX.

The FBI suggests that we should be less critical of Jordan
because Jordan's misstatement actually favored the defense. In
fact, Jordan's misstatement favored the prosecution. The
prosecution's cooperating witness said that he used dynamite to
construct the bomb. As a rule, dynamite does not contain RDX.
Thus, by characterizing the identification of RDX less
positively, Jordan's misstatement tended to favor the prosecution
by not so directly undercutting the prosecution's witness.

The FBI also argues that Jordan's testimony should be viewed
in context, since immediately before this testimony he was asked
whether the device was "consistent with" a booster.
Thus, according to the FBI, Jordan was predisposed to use the
phrase "consistent with." Contrary to the FBI's
suggestion, an examiner is not free to paraphrase another
examiner's findings based on the way the question is asked.
Findings are findings. The way those findings are reported should
not turn on the vagaries of the phraseology used by the attorney
at trial.

(2)We have revised this portion of the section to reflect that
Jordan formed the opinion that a low explosive could not have
caused the damage he saw. We sought to convey this point in the
draft Report by saying that Jordan "doubted" that a low
explosive could have caused the damage, but, as the FBI suggests,
a reader might perceive that Jordan was not sure about this.

(3)In the draft Report, we stated: "Likewise, we find no
basis to conclude that Jordan colluded with counsel to prevent
Whitehurst from testifying." The FBI claims that there is no
allegation that Jordan colluded with the prosecutor in Negretti.
We made this statement based on statements by Whitehurst during
his interview. We agree, however, that "collude" is too
strong, and we removed the word "collude" from the
final Report.

SECTION H6: CONLON CASE

FBI Response

The FBI complains that we criticized Heckman too harshly.
Specifically, the FBI argues that: (1) Heckman's addition to
Whitehurst's dictation was based on Heckman's discussions with
Whitehurst and therefore, strictly speaking, Heckman did not
"add his own observations about the IMS results from the
explosion scene," as stated in our draft Report; and (2)
since Heckman was just trying to be helpful by making the report
more understandable, it is unduly harsh to criticize Heckman's
additions as "improper." FBI Response at 34.

OIG Reply

(1)The FBI is incorrect. Heckman added three paragraphs
immediately after Whitehurst's findings. Heckman told us that the
first paragraph of his addition to the dictation was a
reiteration of his discussion with Whitehurst. In that paragraph,
Heckman essentially states that an IMS was used at the scene but
the results were not confirmed. But Heckman told us that the
second paragraph concerning the degradation of explosive residues
was "my information that I have picked up from discussions
with experts like Fred Whitehurst and Steve Burmeister. . .also
from reading different books. . . . It's knowledge that I have
through my background, training and experience. . . ." As to
the third paragraph, which states that the results of the IMS
test at the crime scene "may well have been true,"
Heckman told us that it is "almost a reiteration of what
Fred said . . . ." Whitehurst, on the other hand, commented
that he did not agree with the statements in the third paragraph
and that Heckman "was on his own" in arriving at the
conclusion that the IMS results may well have been true. In sum,
the evidence indicated that Heckman added his own observations
about the IMS results and his own erroneous interpretation of
what Whitehurst may have told him about the results. Contrary to
the FBI's suggestion, this is not a case where Heckman simply
reported what Whitehurst told him.

(2)The FBI also errs in contending that our criticism of
Heckman's actions is too harsh since Heckman was only trying to
be helpful. Heckman seriously erred when he added to Whitehurst's
dictation without authorization, no matter what his motive.
Heckman's overstatement of the data is not excused by his
allegedly pure motives.

SECTION H7: JUDGE JOHN SHAW

FBI Response

In its response to the draft Report, the FBI states that
because Ron Kelly did not microscopically observe inorganic
materials in the smokeless powders, nothing suggestedadditional
testing was necessary. FBI Response at 34.

OIG Reply

The OIG considered the FBIs response and concluded that
no revisions to the draft Report were appropriate. As noted in
the draft Report, it is conceivable that other inorganic
materials may have been present that Kelly did not observe
microscopically and that would not have been identified by the
analytical tests performed. Examiner Steven Burmeister, who is
now the Laboratorys senior examiner of explosives residues,
told the OIG that he thought smokeless powders generally should
be tested for the presence of inorganic materials and that he
understood Kelly is now doing so. This fact underscores the
OIGs more general point that the protocols for the
examination of smokeless powders and explosives residues should
be integrated, so that the tests performed do not fortuitously
vary depending on the examiner assigned.

SECTION H8: GHOST SHADOW GANG

The FBI did not make any comments to this section.

SECTION H9: THE UNABOM ARTICLE

U.S. Attorney Response

In response to the draft Report, Robert Cleary, a Special
Attorney to the U.S. Attorney General, advised the OIG that the
government would not be relying upon any of Rudolphs work
in the UNABOM case in prosecuting Theodore J. Kaczynski. Cleary
further requested that the Report be amended to reflect this
information.

OIG Reply

The OIG concurs in this request, and the final Report has been
revised accordingly.

FBI Response

The FBI in its response also urged that the OIG omit a
reference in the draft Report to an October 5, 1995 letter from
James Maddock of the FBI OGC. The letter stated that the AUSA
determined that Whitehurst's allegations were unsubstantiated.
The FBI OGC concluded that the AUSA's determination bore on the
credibility of Mr. Whitehurst and also illustrated the disruptive
impact that his allegations have had on FBI operations. The draft
Report noted that the FBI OGCwas not justified in drawing its
conclusion based on a non-scientist prosecutor's evaluation of
the merits of Whitehurst's allegations. The FBI complains that
this is unfair criticism of FBI OGC. FBI Response at 36.

OIG Reply

As explained in the report, given the other information that
the FBI OGC had at the time, we do not think the FBI OGC could
justifiably rely on conclusions from a non-scientist prosecutor
to evaluate the merits of the allegations raised by Whitehurst,
who had largely repeated concerns raised by examiner Steven
Burmeister. Accordingly, we have considered the FBIs
response on this point and concluded that no revisions to report
are appropriate.

SECTION H10: THURMANS ALLEGED ALTERATION OF
DICTATION

FBI Response

In the William Wirt Middle School case, one of the cases
discussed in this section, we conclude that J. Thomas Thurman
failed to revise his report in light of Burmeisters
objections. Based on a recent interview of Burmeister by the FBI
(in which he said he did not remember telling Thurman about his
objections), the FBI argues that we should reevaluate our
conclusion finding Thurman "culpable." FBI Response at
41.

OIG Reply

In a 1996 OIG interview, Burmeister stated that he did tell
Thurman about his concerns. Based on Burmeister's contemporaneous
memorandum noting that he told Thurman about his objections to
Thurman's report and Burmeister's 1996 OIG interview, we reject
the FBI's argument.

FBI Response

The FBI complains that we failed to note (1) that no
prosecutions resulted in any of the 13 cases in which AE
dictation was substantively altered and (2) Thurman has not
revised Whitehursts dictation since 1992.

OIG Reply

In the Report we included the information provided by the FBI,
but as we note in the Report, Thurman's conduct cannot be excused
on the ground that there were few prosecutions in cases where he
made the errors.

SECTION H11: HIGGINS ALLEGED ALTERATION OF
DICTATION

FBI Response

The FBI contests our conclusion that Higgins should be
reassigned. FBI March 24, 1997 Response at 1.

OIG Reply

The FBIs comments are not persuasive. Our reasons for
recommending the reassignment of Higgins are set forth in Part
Five of the Report.

FBI Response

The FBI states that David Williams, not Higgins, was the PE
for Laboratory report No. 51. Therefore, the FBI requests that we
omit this report from the ten reports for which the FBI could not
produce signed dictation. FBI March 24, 1997 Response at 1.

OIG Reply

We have made the requested change based on the FBIs
representation that an error was made and that Williams
name was erroneously omitted from this document.

FBI Response

The FBI objects to our statement that Higgins prematurely
terminated his initial interview and had to be compelled to
appear for future interviews. FBI March 24, 1997 Response at 1-2.

OIG Reply

We commented upon Higgins abrupt termination of the
interview because we considered his actions in reaching our
conclusions. Thus, it is proper for us to mention those actions
in our report. Higgins was one of only two FBI employees who
refused to appear voluntarily for an interview. He chose to
terminate his initial interview when questioned about his
alteration of one of Whitehursts dictations. Our questions
to Higgins about those alterations were appropriate and certainly
were no more difficult than he might face at trial. Accordingly,
we think that Higgins' conduct in terminating the interview was
not warranted. The fact that Higgins was given the right to
terminate the interview does not mean that we cannot consider the
appropriateness of his actions.

FBI Response

The FBI contends that we made a "blanket assumption"
that Whitehurst was more credible than Higgins. The FBI maintains
that this assumption is flawed because (1) Whitehurst has made
numerous factually unsupportable statements as discussed in other
parts of our report, and (2) Whitehurst did not always generate
new dictation when he agreed to alterations, contrary to his
claims. FBI March 24, 1997 Response at 2.

OIG Reply

The OIG did not make blanket assumptions about credibility but
considered each of the contested reports on a case-by-case basis.
Specifically, with respect to each contested report, we
considered the explanations provided by Whitehurst and Higgins
during their interviews. In many cases, their explanations were
wholly contradictory. We made certain credibility determinations
based on the manner in which these examiners responded to our
questions. We also considered their responses in light of other
evidence, including (1) the dictation as initialed by
Whitehursts unit chief, (2) the presence or absence of
documentation showing that the alterations were authorized, (3)
the presence or absence of data supporting the changes made to
the dictation, (4) the cogency of the explanations provided by
Whitehurst and Higgins, (5) Higgins admissions that he made
what we considered to be substantive changes to dictations in at
least some of the cases, (6) comments by Unit Chief Ronay
concerning the practices of the Explosives Unit in making
unilateral changes to AE dictation, and (7) the views expressed
by Higgins and Whitehurst about the appropriateness of such
unilateral changes.

The FBI seems to suggest that we must discount
Whitehursts allegations on this issue because in other
parts of our draft Report, we found some of Whitehursts
allegations to be unsupportable. We disagree. Just as we did not
make a blanket assumption about Higgins credibility based
on his answers to some questions, we did not make a blanket
assumption about Whitehursts credibility based on our
findings in other parts of the Report. Again, we looked at each
Laboratory report on a case- by-case basis.

The FBI also observes that while Whitehurst claimed he
generated new dictation whenever he agreed to make a change to
his dictation, he changed his own dictation without generating
new dictation in at least three Laboratory cases. We note that in
two of the three cases, Whitehurst personally documented the
changes by making and initialing the change in his own
handwriting on the face of his dictations. (See dictations
for Reports No. 2 and 31.) In the remaining case, Whitehurst
generated dictation that was initialed by his unit chief and then
generated new dictation when he added the results from Dr. Mary
Tungols FTIR examination of three additional specimens.
This evidence suggests that when Whitehurst added to or changed
his own dictation, he would either re-issue such dictation or at
least make the changes on the face of the dictationsin his own
handwriting. [ In a footnote, the FBI also refers to the
dictation for Report No. 25 as another instance in which
Whitehurst failed to revise his dictation after adding a
sentence. Because the FBI could not locate or produce the signed
dictation in this Laboratory case, however, it is inappropriate
to speculate as to what may appear in the signed dictation. ] In
contrast, we saw no evidence of such documentation with respect
to the changes made by Higgins.

FBI Response

With respect to Report No. 16, the FBI states that it is
unfair to conclude that Higgins altered the report by omitting
reference to the fact that Whitehursts results were
"preliminary." The FBI argues that we should determine
whether Whitehurst satisfied his own obligation to finalize his
conclusion. FBI March 24, 1997 Response at 4.

OIG Reply

As indicated in our draft Report, Whitehurst reviewed the
official FBI case file and found no evidence that he had agreed
to remove the word "preliminary." The evidence suggests
that Whitehurst would have generated new dictation if he had
changed his dictation or otherwise documented such changes. Even
if Whitehurst failed to "satisf[y] his obligation to
finalize his conclusion," that failure did not permit
Higgins to represent that a final conclusion had been reached.

FBI Response

With respect to Report No. 17, the FBI argues that we cannot
conclude that Higgins altered the dictation, because according to
the dates of the Laboratory report and dictation, Whitehurst did
not prepare the dictation until after the Laboratory Report. FBI
March 24, 1997 Response at 4-5.

OIG Reply

For the reason cited by the FBI, we stated in our draft Report
that we are unable to determine whether Higgins improperly
changed the dictation regarding PETN. We did conclude that
Higgins improperly added the statement regarding lead styphnate
and lead azide. Higgins acknowledged that he added this statement
based on his own x-ray work, even though that x-ray work alone
would not support such a finding. The FBI does not comment on
this finding. Thus, we find no reason to change this conclusion.

FBI Response

With respect to Report No. 20, the FBI objects to our
conclusion that Higgins "misreported" Whitehurst's
findings. The FBI contends that (1) Higgins accurately included
Whitehursts finding that specimens K1 and K2 are
"consistent with" flash powder, but simply added
to that finding by noting that specimens K1 and K2
"contained" flash powder; (2) in any event, Higgins was
qualified to identify flash powder in specimens K1 and K2; and
(3) the OIG should not characterize the omission of
Whitehursts opinions as "selective." FBI March
24, 1997 Response at 5.

OIG Reply

(1)Contrary to the FBIs suggestion, when Higgins stated
that the specimens "contained" flash powder, he
misreported Whitehursts finding that the specimens were
only "consistent with" flash powder.

(2)The FBI argues that Higgins was qualified to identify flash
powder based on, among other things, physical characteristics and
the circumstances of its seizure. In the context of a Laboratory
report, the identification of a substance like flash powder
requires expertise beyond that possessed by Higgins. This is
especially true where, as here, Higgins identifies flash powder
in the instrumental analysis section, suggesting that the results
were obtained through instrumental analysis. If Higgins wished to
identify flash powder based on physical characteristics alone, at
the very least he should have included that opinion in another
part of the report and clearly identified the basis for that
opinion. (We note, however, that since Higgins submitted the
specimen to Whitehurst for an opinion, there was no reason for
him to include his own opinion, which necessarily would be less
specific.)

(3)The use of the word "selective" is appropriate.
It is clear that in many cases, Higgins chose to omit only those
portions of Whitehursts dictation expressing his forensic
opinion. He included the remainder of the dictation verbatim.
Thus, it is appropriate to conclude that Higgins selectively
omitted portions of these dictations.

FBI Response

With respect to Report No. 22, the FBI contends that Higgins
properly omitted Whitehursts opinion statement because it
was stronger than his earlier finding and was not supportable.
The FBI also reports that Higgins believes that it was
appropriate to omit the opinion statement because it was
repetitive. FBI March 24, 1997 Response at 6.

OIG Reply

(1)The FBIs response ignores the real issue. Whether
Higgins had reason to question Whitehursts dictation is not
the point. Whitehurst prepared the dictation, Whitehurst's unit
chief approved the dictation, and hence Higgins had no authority
to unilaterally change it. If Higgins objected to the dictation,
he had every right to seek to change the dictation through the
procedures established within the Laboratory for that purpose.
Specifically, he should have discussed his objections with
Whitehurst and/or Whitehursts unit chief and sought their
permission to change the dictation.

(2) Contrary to the FBI's assertion, the sentences at issue
are not inconsistent. In the first sentence, Whitehurst states
his specific analytical findings; in the next sentence, he states
his forensic opinion based on those findings.

(3) Higgins did not have the mandate or the qualifications to
determine the technical correctness of Whitehurst's report. For
example, even if one of the sentences was "stronger"
than the other, as the FBI contends, Higgins was not qualified to
determine on his own which of the two statements should remain in
the Laboratory Report.

(4) The FBI's contention that "Higgins properly omitted a
statement by Whitehurst that did not appear to be supported by
the evidence" constitutes an acknowledgment, contrary to the
FBI's earlier argument, that Higgins was "selective" in
omitting Whitehurst's opinion.

FBI Response

With respect to Report No. 30, the FBI acknowledges that the
report could have been clearer, but states that Higgins erred in
formatting the Laboratory report, not in altering the dictation.
FBI March 24, 1997 Response at 7.

OIG Reply

The FBI's comments are not persuasive. We agree that Higgins'
additions were potentially misleading because of the format, but
they were equally misleading because of their content and
substance. Higgins stated that the results obtained by Whitehurst
were consistent with Portuguese PE-4A, even though Whitehurst,
the explosives residue expert, told us that he did not have
enough information to reach that conclusion. Higgins added this
opinion to Whitehurst's dictation under the heading
"Instrumental Analysis," suggesting that the opinion
was the result of Whitehurst's instrumental analysis. Higgins
also suggested that this opinion was based on "these
results," when it was based on markings on the wrapper
containing the explosives. Finally, contrary to the FBI's
assertion, we note that we did not use the phrase
"alteration of dictation" in the subsection describing
Report No. 30.

FBI Response

With respect to Report No. 31, the FBI claims that Higgins did
not omit Whitehurst's forensic opinion in this case as alleged in
the draft Report. FBI March 24, 1997 Response at 7.

OIG Reply

The FBI is correct and the OIG has removed this subsection
from the Report. In our draft, we stated that Report No. 31 was
another instance in which Higgins prepared a report that omitted
Whitehurst's forensic opinion. When we investigated the FBI's
claim that the forensic opinion had not been omitted, we
determined that the copy of Report No. 31 that the FBI provided
on August 2, 1996 was incomplete. That copy did not include page
3, the page containing the missing forensic opinion. We relied on
that incomplete copy in our investigation and in interviews with
Higgins and Whitehurst, leading both examiners to believe that
the forensic opinion had been omitted. (Our records further show
that we requested and received a copy of the entire official FBI
case file for Report No. 30 in mid-November 1996. That copy of
the official FBI case file contained a complete copy of the
Laboratory report; however, because we did not suspect the error,
we did not compare the first copy of Report No. 30 provided by
the FBI to the copy in the official FBI case file and did not
discover the discrepancy.)

In light of these events, the FBI requests that we re-evaluate
our finding that there were any improper omissions of
Whitehurst's forensic opinions. We decline to do so. The evidence
still establishes that Higgins omitted Whitehurst's forensic
opinions without authorization from several reports, including
Report Nos. 20, 22, 35, 36, 46 and 47.

FBI Response

With respect to Report No. 35, the FBI contends that Higgins
properly omitted Whitehursts forensic opinion, in this
instance because it was redundant and potentially misleading. FBI
March 24, 1997 Response at 7-8. With respect to Report No. 36,
the FBI again contends that Higgins properly omitted Whitehurst's
opinion, in this instance to ensure the report was
"unambiguous, clear, and defensible." FBI March 24,
1997 Response at 8-9.

OIG Reply

The FBI acknowledges that Higgins violated the policy
requiring verbatim incorporation of dictation, but attempts to
justify that breach of policy. We reject that approach. The issue
is not whether Higgins was correct in wanting to change the
dictation, but whether he made those changes pursuant to
established Laboratory procedures.

FBI Response

With respect to Report No. 37, the FBI asks that we revise our
conclusion that Higgins altered this report. The FBI states that
because Higgins and Whitehurst had a miscommunication about this
report, it is not accurate to characterize this result as an
alteration of dictation. FBI March 24, 1997 Response at 10.

OIG Reply

In our subsection concerning Report No. 37, we do not
characterize Higgins' actions as an alteration of the dictation.
We do state that Higgins erred by adding dictation concerning
accelerants analysis reportedly done by Whitehurst without
Whitehurst's express permission. We also stated that Higgins
should have requested new dictation from Whitehurst, a request
that would have revealed their possible miscommunication.

FBI Response

With respect to Report No. 42, the FBI requests that we
re-evaluate our finding because Higgins "vehemently
denies" adding "6% binders" to the dictation and
Whitehurst stated that this addition was "not that big a
deal." FBI March 24, 1997 Response at 10.

OIG Reply

In our interview of Higgins, Higgins did not "vehemently
deny" making this addition; rather, he stated that he did
not specifically recall this matter but assumes that he would not
have written "6% binders" without being told by
Whitehurst. Whitehurst has told us that he did not know why he
said in his earlier interview that this alteration was "not
that big a deal," and added that "it is a big deal when
somebody changes your report." Whitehurst also told us,
"To say it was 6 percent binder, it could have been
wrong." We see no reason to change our conclusion.

FBI Response

With respect to Report No. 46, the FBI contends that Higgins
properly omitted Whitehurst's opinion, in this instance because
Whitehurst rendered an opinion outside his area of expertise. FBI
March 24, 1997 Response at 10-11.

OIG Reply

As previously noted, the issue is not whether Higgins was
correct in wanting to change the dictation, but whether he made
those changes pursuant to established Laboratory procedures.

We also do not agree that Higgins merely omitted an opinion
that encroached into his area of expertise or merely
"rephrased" Whitehurst's opinion as suggested. Although
Higgins apparently objected to part of the sentence describing
the "red colored hobby fuse," he changed the entire
sentence, including Whitehurst's analytical explosives residue
results.

Finally, we reject the FBI's suggestion that the procedures in
place in the Laboratory worked in this case. Those procedures
required that Higgins obtain permission from Whitehurst before
changing his dictation.

FBI Response

With respect to Report No. 47, the FBI again contends that
Higgins properly omitted Whitehurst's opinion, in this instance
because Whitehurst rendered an opinion outside of his area of
expertise. FBI March 24, 1997 Response at 11.

OIG Reply

Our responses with respect to Report No. 46 apply to this
matter as well.

FBI Response

The FBI objects to our statement that completion of this
section was delayed for several weeks because of the FBI's
failure to produce documents. The FBI explains that its ability
to respond to document requests was impeded by erroneous case
numbers on several of Whitehurst's dictations. FBI March 24, 1997
Response at 11-12.

OIG Reply

In mid-January 1997, we discovered that many of the copies of
official FBI case files previously produced by the FBI were
incomplete and did not include dictations that should have been
in the file. At that time, our investigators undertook to
personally review the original files at the FBI. We also learned
about the FBI's documentation retention practices, which included
the use of "Enclosures Behind Files" and
"Bulkies" that accompanied the official FBI case files.
In several cases, the FBI had not reviewed these accompanying
files for missing dictations. As a results of our efforts, which
took several weeks, we and the FBI were able to locate many of
the missing dictations.

We have omitted any reference to these events in the Report
for three reasons. First, this discussion is not germane to the
topic of this section, Higgins's alleged alterations of
dictation, and may distract the reader from our major points.
Second, we have addressed deficient record retention practices
generally in our conclusion. Third, we agree with the FBI that it
has exerciseddiligence and commitment in producing documents,
information, and assistance in response to numerous requests in
the course of our investigation.

SECTION H12: TOBIN ALLEGATIONS

IMPROPER WIRE GAUGING

FBI Response

In its response to the draft Report, the FBI states that after
Thurman was unable to obtain training for the EU from Tobin on
measuring wire gauge and certain other issues, Thurman contacted
other examiners and an industry specialist and Thurman then
himself instructed the EU on wire gauging as Tobin had requested.
FBI Response at 41-42.

OIG Reply

The OIG has revised its draft Report to reflect the
information supplied by the FBI. The final Report further notes
that the events described by the FBI in its response evidently
occurred after Thurman was interviewed by the OIG in September
1996, because he said at the time of the interview he did not
know what the industry practice was and that he had told Tobin he
could set up the training whenever Tobin wanted to do it.

THE LA FAMILIA CASE

FBI Response

In its response to the draft Report, the FBI asked that the
OIG delete its conclusions that Thurman and Mohnal seemed to be
more concerned about Tobins motive for issuing certain
dictation and that Thurman appeared to be chiefly concerned with
defending a report issued by Mohnal and attempting to persuade
others that Tobins dictation should be withdrawn. The FBI
states that, according to Thurman, the OIG did not interview him
about his concerns. FBI Response at 42.

OIG Reply

The OIG Report has been revised to state that Thurman and
Mohnal seemed to be more concerned about Tobins motive or
manner in raising his concerns than about the merits of the
points raised. The OIGs conclusions in this matter
regarding Thurman are based on what he told the OIG in his
interview about how he responded to Tobins concerns. We do
not think any other revisions are appropriate.

THE ALCEE HASTINGS MATTER

FBI Response

In its response to the draft Report, the FBI urges that the
OIG omit the conclusion that Malone testified "falsely"
in the Alcee Hastings investigation because it incorrectly
suggests he was intentionally deceptive. FBI Response at 44.

OIG Reply

The OIG has revised the draft Report to acknowledge the
FBIs response and to note that we here use the term
"false" as it is employed in other legal contexts, that
is, to describe something that is untrue or not in accord with
the facts. Accordingly, we treat as separate issues whether
Malones testimony was false and, if so, whether Malone gave
such testimony deliberately or with an intent to deceive.

Doar Response

The OIG also received an extensive response to the draft
Report from John Doar, the attorney who served as the chief
counsel for the judicial committee that investigated alleged
misconduct by Hastings. Among other things, Doar maintained that
the draft Report incorrectly suggested that the judicial
committee had been influenced by Malones testimony.

OIG Reply

Based on the information supplied by Doar and several
additional interviews, we revised and expanded the draft Report
to: (1) state explicitly that the OIG investigation focused on
Tobins allegations concerning Malones testimony, and
we did not otherwise review or evaluate actions by the FBI or
others related to the impeachment of Hastings; (2) expand the
discussion of the events related to the alleged bribery scheme
between Hastings and William Borders, so that Malones 1985
testimony about a purse is placed in better context; (3)
recognize that the findings and recommendations in the judicial
committees report and the articles of impeachment later
passed by the House of Representatives do not refer to the purse
or the tensile test that was the subject of Malones
testimony; (4) state explicitly our conclusion that Malone did
not tell Doar during the proceedings before the judicial
committee that Tobin, and not Malone, had performed the tensile
test; and (5) to state that although the Laboratory failed in
1989 to investigate adequately Tobins allegations about
Malones 1985 testimony, we did not conclude that its
failure was part of a deliberate or concerted effort to conceal
Tobins concerns.

The revisions to the draft Report do not alter the OIGs
conclusions that Malone testified falsely before the judicial
committee in 1985 and that Laboratory management, specifically

Kenneth Nimmich, failed to assure that allegations Tobin made
in 1989 were adequately investigated.

SECTION H13: GEORGE TREPAL

FBI Response

In its response, the FBI maintains that Martz correctly
identified thallium nitrate in the adulterated Coca-Cola. The FBI
states that the draft Report was wrong in stating that Martz had
overstated the significance of his analytical results and in
positing an erroneous scenario that thallium chloride and sodium
nitrate had been added to the Coca-Cola. On the latter point, the
FBI notes that the SEM/EDXA profile on Q1 did not indicate an
elevated level of sodium and this result excludes the possibility
that sodium nitrate had been added to the Coca-Cola. The FBI
response then purports to set forth "the analysis by which
Martz determined that thallium nitrate had been added to the
Coca-Cola at issue." FBI Response at 17-20.

OIG Reply

After receiving the FBIs response, we interviewed FBI
examiners Thomas Jourdan and Steven Burmeister, who assisted in
preparing the FBIs response on this case. The interviews
clarified that the FBIs response was not based on
Martzs explanation of how he had reached the conclusions
stated in his reports or testimony, but instead was based on
Jourdan and Burmeisters own interpretation of analytical
test results contained in the case file and on discussions with
Martz. This distinction is significant, because Martz testified
in his deposition and at trial that he had relied only on
diphenylamine tests and ion chromatography tests to conclude that
thallium nitrate had been added to the Coca-Cola. The FBIs
response discusses the results of several other tests, including
SEM/EDXA, MS, and XRPD, which Martz told the OIG that he did not
rely upon in reaching his conclusion.

Based on the FBIs response and the follow-up interviews
with Jourdan and Burmeister, we revised the Report in several
respects. First, we acknowledge that given the tests Martz
actually performed, he could have properly stated in his
dictation and testimony that two samples of Coca-Cola, identified
as Q1 and Q2, were "consistent with" thallium nitrate
having been added to them. Alternatively, he correctly could have
observed that Q1 and Q2 had elevated levels of thallium and
nitrate ions as compared to unadulterated Coca-Cola. Martz,
however, did not limit his conclusions this way, and as explained
in the Report, we find his work on the case was deficient in
several respects: (1) his dictation stated that the nitrate ion
was identified in samples Q1 through Q3 and those samples were
consistent with thallium nitrate having been added to them; this
was incorrect insofar as he had not performed tests necessary to
reach these conclusions with regard to Q3; (2) Martz did not
acknowledge certain data obtained from the tests he performed;
(3) he failed to perform additional tests that were appropriate
under the circumstances;(4) in testifying, Martz improperly
offered a stronger opinion about the identification of thallium
nitrate than he had expressed in the dictation reviewed by his
supervisor and included in the Laboratory report; (5) Martz did
not adequately document his work, his cases notes were
incomplete, undated, and inaccurate, and the charts were not
accurately or clearly labeled; (6) Martz lacked a sufficient
analytical basis to opine that a bottle containing thallium
nitrate found in Trepals garage, identified as Q206,
contained "no other drug residues"; (7) he gave an
unsupported opinion about the purity of the thallium nitrate in
Q206; and (8) Martz in his deposition and trial testimony made
various inaccurate, incomplete, or unsupported statements.

Martz also provided a written response to the OIGs draft
Report in which he commented on the Trepal case and
certain other matters. Based on Martzs response, we have
revised the draft Report to clarify that in the World Trade
Center case, Martz as unit chief approved examiner Lynn
Lasswells conclusion that mass spectrometry had identified
urea nitrate on certain evidence, when the results in fact merely
established the presence of urea and nitrate ions. With regard to
determining if drug residues were present in Q206, the bottle
found in Trepals garage containing thallium nitrate, Martz
appears to have misunderstood our conclusion that he should have
performed a drug screen protocol. We did not mean to suggest that
he should have done testing on biological or urine specimens, but
rather that he should have made an extraction of the sample and
followed a protocol of the type routinely used in forensic
laboratories for drug identification. We have revised the draft
Report accordingly.

With regard to the purity of thallium nitrate in Q206, we
acknowledge in the final Report that Martz in his response states
that the XRPD would detect any adulteration with crystalline
material exceeding 15 percent and that the FTIR would detect any
adulteration with infrared absorbing material exceeding 15
percent. This is different from what Martz stated in his
deposition and at trial in Trepal, and we still conclude
that he then made unsupported statements in testifying about the
purity of the thallium nitrate in the bottle. Finally, we note
our disagreement with Martzs statement in his response that
"[t]here is no essential difference between [his] opinion
that thallium nitrate was added to the specimen and [his] report
dictation that states `is consistent with thallium nitrate having
been added. . . ." For reasons stated in the Report,
we think Martz in testifying erred by offering a stronger opinion
about the identification of thallium nitrate than he had
expressed in the dictation reviewed and approved by his
supervisor for inclusion in the Laboratory report.

PART FOUR: WHITEHURSTS ALLEGATIONS OF RETALIATION

The FBI, the U.S. Attorneys' Office, and other responders did
not make any comments on this section.

PART FIVE: FINDINGS AND RECOMMENDATIONS CONCERNING
INDIVIDUALS

ROGER MARTZ

FBI Response

The FBI contends that our findings assign disproportionate
blame to Martz for his 1989 review of Rudolphs cases.

The FBI also repeated points otherwise made in its response
concerning other cases on which Martz worked, such as World Trade
Center, VANPAC, and Trepal. FBI Response at 37-38.

OIG Reply

We considered the FBIs response and concluded that no
changes were appropriate in our discussion of the issue of
Martz's review of Rudolph's cases.

We have considered the FBI's comments on Martz's work on other
cases and made such revisions as are discussed earlier in the
sections of this reply that concern the particular cases. Based
on the responses of the FBI and Martzs own response, we did
not think our overall findings should be modified. We did revise
our comments concerning Martzs threshold of scientific
proof and lack of scientific rigor to clarify that we draw our
conclusions based on Martzs reporting of his 1989 review of
Rudolphs casework, his defense of Lasswells
interpretation of mass spectrometry results in the World Trade
Center case, and his work in Trepal. We also recommend in
the final Report that another qualified examiner review any
analytical work by Martz that is to be used as the basis for
future testimony.

J. THOMAS THURMAN

FBI Response

The FBI complains that Part Five, Section I.C. regarding
allegations against Thurman gives the false "impression that
where there is smoke, there is fire" because of
the absence of a "road map to the OIGs
conclusions." FBI Response at 40.

The FBI suggests that we omit from the Yu Kikumura
section our criticisms that Thurmans testimony was
ambiguous or contained minor inaccuracies in four respects.
Alternatively, the FBI asks that we repeat the observation we
made in Part Two about the pressures examiners face in giving
in-court testimony. FBI Response at 43.

The FBI also makes several comments regarding our discussion
of Thurman's conduct in light of Tobin's allegations about the
reporting of wire gauging and the La Familia case. FBI
Response at 41-42.

OIG Reply

Because Part Five, Section I.C. is a short section, we
conclude that a "road map" is unnecessary.

The FBI does not challenge the accuracy of our conclusion that
Thurmans testimony was ambiguous or inaccurate in the
identified respects in the Kikumura case. We have
considered the FBIs response on this point and concluded
that no revisions are appropriate.

We have previously discussed, in Section H12, the FBIs
response as it concerns Thurman's conduct with respect to
Tobins allegations about the reporting of wire gauging and
the La Familia case.

ALAN JORDAN

The FBI's response to the OIG's discussion of Jordan's
testimony in the Negretti case is discussed in Section H5, and
its response to the OIG's discussion of Jordan's conduct in the
Bush assassination matter is discussed in Section D.

MICHAEL MALONE

FBI Response

The FBI objects to the OIG's conclusion that Malone testified
"falsely" before a judicial committee investigating
conduct by former federal judge Alcee Hastings, because
Malones testimony was not intentionally deceptive.

OIG Reply

We clarified our conclusions by noting that we use the term
"false" to signify something that is untrue or not in
accord with the facts. We find that Malone falsely testified that
he had himself performed a tensile test and that he also
testified inaccurately and outside his expertise concerning the
test results.

ROBERT WEBB

FBI Response

As noted above in our discussion of responses concerning the
VANPAC case, the FBI in its response asked the OIG to consider
whether its conclusions regarding Webb are overly critical or
inaccurate. FBI Response at 46.

OIG Reply

We considered the FBIs response on this point and
concluded that no revisions to the Report were appropriate.

CHARLES CALFEE

FBI Response

The FBI contends that in statements to the OIG, Calfee did not
mean to express that one examiner should testify based on the
incomplete notes of another examiner, but instead that the second
examiner should do the analysis himself and not testify from the
notes of another examiner at all. FBI Response at 47.

OIG Reply

We have revised the Report to acknowledge this information
provided by the FBI and to observe that this does not excuse
Rudolphs incomplete case notes.

KENNETH NIMMICH

A minor date change was corrected.

ROD ASBURY

Minor inaccuracies in the descriptions of the posts Asbury
held were corrected.

HOWARD SHAPIRO

FBI Response

The FBI contends that the draft Report is misleading in
stating that we found no basis to conclude that Shapiro was
involved in the decision to reassign Whitehurst or otherwise
directed or engaged in any retaliation against him. The FBI
requests that we note that the OIG has no factual basis to
believe that Whitehurst suffered retaliation, so Shapiro could
not have directed or participated in any retaliation. FBI
Response at 50.

OIG Reply

We have considered the FBIs response on this point and
concluded that no revisions are appropriate. The conclusions
regarding Shapiro do not, as the FBI suggests, indicate that
Whitehurst in fact suffered any retaliation. Our conclusions
regarding Whitehursts retaliation claims are set forth in
Part Five of the Report. Although we generally rejected
Whitehursts allegations of retaliation, our conclusion
concerning his referral for psychiatric examination was qualified
because Whitehurst himself would not consent to the release of
certain information.

PART SIX: ENHANCING QUALITY IN THE LABORATORY

FBI Response

The FBI indicates that, with one exception described below, it
agrees with each of the recommendations made by the OIG to
enhance quality within the Laboratory and that it is taking or
has already taken steps to implement those recommendations. In
the final Report, we briefly summarize the FBIs response
concerning the particular recommendations made by the OIG. FBI
Response at 51-71.

The FBI noted its disagreement with the OIGs
recommendation that the investigative and crime scene management
functions of the EU should be transferred out of the Scientific
Analysis Section of the Laboratory. The FBI notes that bomb scene
investigations are unique and that it is necessary for explosives
examiners to be involved at the scene. FBI Response at 55-57.

OIG Reply

As noted above, it appears that the FBI has misunderstood our
recommendations in this regard. The OIG did not intend to suggest
the EU examiners should be excluded from crime scenes, and we
noted in the draft Report that "examiners in the EU should
continue to advise and assist in the gathering of evidence at
bombing scenes." To clarify our intent on this point, we
revised the recommendation concerning the EU to state,
"Examiners in the EU should continueto advise and assist in
gathering evidence at bombing scenes, but primary responsibility
for conducting investigations and directing crime-scene
management should rest with components of the FBI outside the
Scientific Analysis Section."

PART SEVEN: SUMMARY OF OIG RECOMMENDATIONS FOR
LABORATORY

The FBI's comments regarding the OIG's recommendations are set
forth in Part Six.

PART EIGHT: CONCLUSION

The FBI, the U.S. Attorneys' Offices, and other responders did
not make any comments to this section.

THE FBI REQUEST TO THE OIG FOR FURTHER INSPECTION

FBI Response

In its response to the draft Report, the FBI noted that it
remains firmly committed to enhancing the quality of its
Laboratory. The FBI further requested that the OIG conduct
"progress reviews" on the implementation of its
recommendations every six months until both the OIG and the FBI
are satisfied that the Laboratory has made the changes necessary
to address the issues raised in the draft Report. FBI Response at
71.

OIG Reply

The OIG acknowledges that some form of follow-up review by the
OIG may be appropriate. The nature and timing of that review,
however, should be the subject of further discussions between the
FBI and the OIG to allow the new Laboratory Director to be
selected and to settle into the position and to avoid unnecessary
duplication with other reviews that are already contemplated. The
FBI reports that it will have an external, pre-accreditation
review conducted this spring by inspectors from the National
Forensic Science Technical Center, and that it contemplates that
it will submit its accreditation application to ASCLD/LAB by the
end of 1997. Accordingly, at an appropriate time after the new
Laboratory Director is named, we suggest that the OIG and the FBI
address the issue of further OIG reviews of the Laboratory.